[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Rules and Regulations]
[Pages 55144-55153]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22100]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R10-OW-2012-0197; FRL-9724-7]
Ocean Dumping; Designation of Ocean Dredged Material Disposal
Sites Offshore of Yaquina Bay, Oregon
AGENCY: The Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing the designation of two new ocean dredged
material disposal (ODMD) sites offshore of Yaquina Bay, Oregon,
pursuant to the Marine Protection, Research, and Sanctuaries Act, as
amended (MPRSA). On April 5, 2012, the EPA published a proposed rule to
designate the sites and opened a public comment period under Docket ID
No. EPA-R10-OW-2012-0197. The comment period closed on May 7, 2012. The
EPA received several comments on the proposed rule. The EPA's responses
are included in section 2.c of this final rule labeled ``Response to
Comments Received.'' The EPA decided to finalize the action to
designate the new sites because the new sites are needed to serve the
long-term need for a location to dispose of material dredged from the
Yaquina River navigation channel, and to provide a location for the
disposal of dredged material for persons or entities who have received
a permit for such disposal. The newly designated sites are subject to
ongoing monitoring and management to ensure continued protection of the
marine environment.
DATES: The effective date of this final action shall be October 9,
2012.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information may not be publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, will
be publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the EPA Region 10 Library, 1200 Sixth Avenue, Suite
900, Seattle, Washington 98101. The EPA Region 10 Library is open from
9:00 a.m. to noon, and 1:00 to 4:00 p.m. Monday through Friday,
excluding federal holidays. The EPA Region 10 Library telephone number
is (206) 553-1289.
FOR FURTHER INFORMATION CONTACT: Bridgette Lohrman, U.S. Environmental
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public
Affairs, Environmental Review and Sediment Management Unit, Oregon
Operations Office, 805 SW Broadway, Suite 500, Portland, Oregon 97205;
phone number (503) 326-4006; email: Lohrman.Bridgette@epa.gov.
SUPPLEMENTARY INFORMATION:
1. Potentially Affected Persons
Persons potentially affected by this action include those who seek
or might seek permits or approval by the EPA to dispose of dredged
material into ocean waters pursuant to the Marine Protection, Research,
and Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to 1445. The
EPA's action would be relevant to persons, including organizations and
government bodies seeking to dispose of dredged material in ocean
waters offshore of Yaquina Bay, Oregon. Currently, the U.S. Army Corps
of Engineers (Corps) would be most affected by this action. Potentially
affected categories and persons include:
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Category Examples of potentially regulated persons
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Federal government........... U.S. Army Corps of Engineers Civil Works
projects, and other Federal agencies.
Industry and general public.. Port authorities, marinas and harbors,
shipyards and marine repair facilities,
berth owners.
State, local and tribal Governments owning and/or responsible for
governments. ports, harbors, and/or berths,
Government agencies requiring disposal
of dredged material associated with
public works projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular person or entity, please refer to the contact person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
2. Background
a. History of Disposal Sites Offshore of Yaquina Bay, Oregon
The Corps historically used the general area offshore of Yaquina
Bay for dredged material disposal. In 1977, an Interim ODMD site
offshore of Yaquina Bay received an EPA interim designation and was
used by the Corps for dredged material disposal after 1977 and prior to
1986 (Figure 1). Because of increased mounding in the Interim Site and
its potential adverse effect on navigation safety, the Corps selected
an alternate ODMD site, the ``Adjusted Site,'' under the authority of
Section 103 of the MPRSA, with the EPA's concurrence. The Corps began
to use this ``Adjusted Site'' in 1986. By 1990, dredged material had
accumulated in the Adjusted Site to an extent that portions of the Site
had to be avoided, and careful placement of material was necessary on
specific portions of the Adjusted Site. In 2000, the Corps ceased
[[Page 55145]]
disposal of material at the Adjusted Site. In 2001, the Corps and the
EPA completed a study examination of possible new locations for ocean
disposal further offshore from the entrance to Yaquina Bay. The
recommended locations from that study are the Yaquina North and South
Sites designated in this action.
In October 2000, these disposal sites were authorized for use by
the Corps, following the EPA's concurrence, under Section 103 of the
MPRSA as selected sites. To provide for sufficient disposal capacity
over the long term, on April 5, 2012, the EPA proposed to designate
both a Yaquina North Site and a Yaquina South Site under Section 102 of
the MPRSA, for the ocean disposal of dredged material offshore of
Yaquina Bay. These proposed sites were designed to use the footprints
of the Section 103 selected sites. The Yaquina North Site, which had
been unavailable once authorization for use under Section 103 of the
MPRSA expired at the end of the 2011 dredge season, will be available
for use as a designated site upon the effective date of this final
action. The Yaquina South Site, which was used for disposal of dredged
material for the first time during the 2012 dredging and disposal
season since its selection under Section 103 in 2001, will also be
available for use as a designated site upon the effective date of this
action.
The designation of the two ocean disposal sites for dredged
material does not mean that the Corps or the EPA has approved the use
of the Sites for open water disposal of dredged material from any
specific project. Before any person or entity can dispose dredged
material at either of the Sites, the EPA and the Corps must evaluate
the project according to the ocean dumping regulatory criteria (40 CFR,
part 227) and authorize the disposal. The EPA independently evaluates
proposed dumping and has the right to restrict and/or disapprove of the
actual disposal of dredged material if the EPA determines that
environmental requirements under the MPRSA have not been met.
b. Location and Configuration of Yaquina North and South Ocean Dredged
Material Disposal Sites
This action finalizes the designation of two ocean dredged material
sites to the north and south, respectively, offshore of Yaquina Bay.
The location of the two ocean dredged material disposal sites (Yaquina
North and South ODMD Sites, North and South Sites, or Sites) are
bounded by the coordinates, listed below, and shown in Figure 1. The
designation of these two Sites will allow the EPA to adaptively manage
the Sites to maximize their capacity, minimize the potential for
mounding and associated safety concerns, and minimize the potential for
any long-term adverse effects to the marine environment.
The coordinates for the two Sites are, in North American Datum 83
(NAD 83):
Yaquina North ODMD Site
44[deg]38'17.98'' N, 124[deg]07'25.95'' W
44[deg]38'12.86'' N, 124[deg]06'31.10'' W
44[deg]37'14.33'' N, 124[deg]07'37.57'' W
44[deg]37'09.22'' N, 124[deg]06'42.73'' W
Yaquina South ODMD Site
44[deg]36'04.50'' N, 124[deg]07'52.66'' W
44[deg]35'59.39'' N, 124[deg]06'57.84'' W
44[deg]35'00.85'' N, 124[deg]08'04.27'' W
44[deg]34'55.75'' N, 124[deg]07'09.47'' W
The two Sites are located in approximately 112 to 152 feet of
water, and are located to the north and south of the entrance to
Yaquina Bay on the central Oregon Coast. The Yaquina North Site is
located about 1.7 nautical miles northwest of the entrance to Yaquina
Bay and the Yaquina South Site is located about 2.0 nautical miles
southwest of the bay's entrance. Both ocean disposal sites are 6,500
feet long by 4,000 feet wide, each about 597 acres in size.
BILLING CODE 6560-50-P
[[Page 55146]]
[GRAPHIC] [TIFF OMITTED] TR07SE12.006
BILLING CODE 6560-50-C
c. Response to Comments Received
The EPA received several comments on the proposed site designation
during the public comment period which closed on May 7, 2012. Two
commenters, while finding the proposed site designation to be thorough
and inclusive, questioned whether negative effects from the site
designation could be adequately controlled. In response to the concern
raised by these commenters, the EPA reviewed the Site Management and
Monitoring Plan (SMMP) for the Sites to ensure that controls are in
place both to prevent negative effects and to correct impacts from
negative effects in the unlikely event such effects occurred.
[[Page 55147]]
The final SMMP, found in the docket for this action, includes
safeguards to act to prevent negative effects, primarily through
ensuring that only material meeting ocean dumping criteria for ocean
disposal are allowed to be disposed at the Sites, and through the
implementation of adaptive management of the Sites. The EPA can respond
to negative impacts, including, for example, having site users adjust
disposal amounts, techniques, and timing, and the EPA can shut down the
sites on a short term or long term basis if needed, if negative effects
are observed or if trends suggest negative impacts could occur. The EPA
has authority to condition, terminate or restrict site use with cause.
Another commenter suggested that dumping dredged material at the
Sites would result in a large amount of pollution in concentrated
areas. In response to this comment, the EPA reiterates that material
allowed to be disposed of at the Sites is limited to dredged material
deemed to be environmentally acceptable for ocean disposal. As
discussed in the proposed designation, and further discussed below,
dredged material proposed for disposal would be evaluated prior to
disposal. Only dredged material without contaminant concentrations at
harmful levels would be deemed suitable for ocean disposal.
This commenter also suggested that less dredging in the waterways
would create less need for ocean disposal, while another commenter
asked the EPA to consider alternate disposal sites and to facilitate
additional discussions with local businesses and residents to discuss
the impacts of the designation. The EPA appreciates these concerns.
While the Corps, rather than the EPA determines the location and amount
of dredging necessary to maintain the waterways of the U.S., the EPA
determines, with the Corps' input, how best to dispose of material that
must be disposed of in the ocean. Part of that analysis includes a
balancing of community and ocean user needs. The EPA finds this site
designation to be the best balance of those needs at this time. The EPA
will continue to evaluate these local community concerns and will use
the SMMP to make adjustments as needed to the extent practicable, to
help ensure the needs of the users are balanced against the concerns of
the local community.
A commenter raised a concern about the site designations on bar
conditions across the Yaquina Bay bar during high swell conditions and
asked whether any special analysis was warranted. The EPA and the Corps
share the commenter's concern that negative effects on bar crossing
safety are unacceptable. The SMMP for the designated North and South
Sites is designed with safeguards to help prevent disposal at the Sites
from causing or contributing to adverse swell conditions. A primary
goal of site management is to avoid the creation of persistent mounds
that could negatively impact the wave climate. SMMP safeguards include
placement strategies and special management conditions and practices to
be implemented, such as ``uniform placement'' of dredged material and
annual bathymetric surveys, so as to minimize the potential for
mounding that could create or contribute to adverse swell conditions
across the sites. Alternating the use of the North and South Sites is
an included condition to help ensure minimal impact to the wave
climate. Safeguards also include quantity restrictions, and the EPA's
annual review of the prior year's dumping and the EPA's review of dump
plans for the upcoming year prepared by the Corps. The SMMP sets a
threshold condition to require the Corps to re-evaluate disposal
impacts on wave climate if bathymetric surveys show elevations at 14
feet above 2001 baseline elevations over more than 30% of the Site. If
mounds above this threshold become widespread or persistent, the USACE
and the EPA will conduct additional site assessment to determine if
site use restrictions, including a change in disposal methodology, or
cessation of use, are needed. If necessary, the EPA can direct users to
conduct special studies to assess conditions and contributing factors.
The EPA is convinced these safeguards combined with the EPA's authority
to condition, terminate or restrict site use with cause, are sufficient
to address this commenter's concern.
Finally, one commenter asked whether shorebirds in the area would
be affected by the site designation. The EPA assessed the potential
impact to shorebirds in the Environmental Assessment prepared for the
site designation and as part of evaluating the site designation
pursuant to the Endangered Species Act. As discussed in the
Environmental Assessment and the Biological Assessment, shorebirds are
not expected to be affected by the site designation. The U.S. Fish and
Wildlife Service (USFWS) concurred with the EPA's finding that the site
designation is not likely to adversely affect seabirds because of the
presence of abundant suitable foraging habitat and the anticipated
temporary nature of minor behavioral changes in flight or foraging
during disposal activities at the designated sites. The USFWS
concurrence letter is included in the docket for this action.
d. Management and Monitoring of the Sites
The Sites are expected to receive sediments dredged by the Corps to
maintain the federally authorized navigation project at Yaquina Bay,
Oregon and dredged material from other persons who have obtained a
permit for the disposal of dredged material at the Sites. All persons
using the Sites are required to follow the Site Management and
Monitoring Plan (SMMP) for the Sites. The SMMP includes management and
monitoring requirements to ensure that disposal activities will not
unreasonably degrade or endanger human health, welfare, the marine
environment, or economic potentialities. The SMMP for the Yaquina North
and South Sites, in addition to the aforementioned, also addresses
management of the Sites to ensure adverse mounding does not occur and
to ensure that disposal events minimize interference with other uses of
ocean waters in the vicinity of the proposed Sites. The SMMP, which was
available for public comment as a draft document, has been finalized
and the final document may be found in the Docket.
e. MPRSA Criteria
In designating these Sites, the EPA assessed the Sites according to
the criteria of the MPRSA, with particular emphasis on the general and
specific regulatory criteria of 40 CFR part 228, to determine whether
the site designations satisfied those criteria. The EPA's Yaquina Bay,
Oregon Ocean Dredged Material Disposal Sites Evaluation Study and
Environmental Assessment, July 2012 (EA), provided an extensive
evaluation of the criteria and other related factors for the
designation of these Sites. The EA was available as a draft document
for review and comment when the EPA proposed to designate the sites.
The EA has been finalized and the final document may be found in the
Docket.
General Criteria (40 CFR 228.5)
(1) Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
The EPA reviewed the potential for the Sites to interfere with
navigation,
[[Page 55148]]
recreation, shellfisheries, aquatic resources, commercial fisheries,
protected geologic features, and cultural and/or historically
significant areas and found low potential for conflicts. The Sites
spatially overlap with recreational activities such as boating and
whale watching, recreational and commercial finfish or Dungeness crab
fishing, tow lane agreements between tow boat operators and Dungeness
crab fishermen, and recreational and commercial navigation. However,
the Sites are unlikely to cause interference with these or other uses
provided close communication and coordination is maintained among
users, vessel traffic control and the U.S. Coast Guard. Recreational
users are expected to focus their activities on areas that are
shoreward of the Sites, such as Yaquina Reef. Commercial fishing,
including that for salmon and Dungeness crab, is expected to occur at
the Sites, but the EPA does not expect disposal operations at the Sites
to conflict with this use because of the limited space and time during
which disposal occurs. The SMMP outlines site management objectives,
including minimizing interference with other uses of the ocean. Should
a site use conflict be identified, site use could be modified according
to the SMMP to minimize that conflict.
(2) Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
Based on the EPA's review of modeling, monitoring data, sediment
quality, and history of use, no detectable contaminant concentrations
or water quality effects, e.g., suspended solids, would be expected to
reach any beach or shoreline from disposal activities at the Sites. The
primary impact of disposal activities on water quality is expected to
be temporary turbidity caused by the physical movement of sediment
through the water column. All dredged material proposed for disposal
will be evaluated according to the ocean dumping regulations at 40 CFR
227.13 and guidance developed by the EPA and the Corps. In general,
dredged material which meets the criteria under 40 CFR 227.13(b) is
deemed environmentally acceptable for ocean dumping without further
testing. Dredged material which does not meet the criteria of 40 CFR
227.13(b) must be further tested as required by 40 CFR 227.13(c).
Disposal of suitable material meeting the regulatory criteria and
deemed environmentally acceptable for ocean dumping will be allowed at
the Sites. Most of the dredged material (approximately 95%) to be
disposed at the Sites is expected to be sandy material, while a small
amount of material (up to 5% of the material) would be classified as
fine-grained. Hopper dredges, which are typically used for the Corps'
annual navigation dredging, are not capable of removing debris from the
dredge site. However, specific projects may utilize a clamshell dredge,
in which case there is the potential for the occasional placement of
naturally occurring debris at the disposal Sites.
(3) The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
To ensure that site managers can be responsive to the specifics of
each dredging season based on dredge schedules, weather, and bathymetry
at the Sites, the EPA has decided to designate both the North and South
Sites. The footprints of the Sites are designed to maximize their
capacity, helping to assure minimal mounding and to minimize any
adverse affects to the wave climate. The presence of Yaquina Reef,
close to shore at shallow depths, prevents nearshore designation and
dredged material disposal in dispersive locations at depths less than
60 feet. The North Site will be the preferred placement area for
disposal of dredged material as was the case when the Site was used as
a Section 103 selected site. During some periods, disposal may be
alternated between the two Sites. The use of the South Site is more
dependent upon wind and wave conditions, particularly in April and May
when the typical dredge season starts, and for this reason is expected
to be used less frequently than the North Site. Effective monitoring of
the Sites is necessary and required. The EPA will require annual
bathymetric surveys for each Site to track site capacity and to assess
the potential for mounding concerns. These surveys will inform the
active management of the Sites.
(4) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
Disposal areas located off of the continental shelf would be at
least 20 nautical miles offshore. This distance is well beyond the 4.5
nautical mile haul distance determined to be feasible by the Corps for
maintenance of their Yaquina Bay project. Additional disadvantages to
off-shelf ocean disposal would be the unknown environmental impacts of
disposal on deep-sea, stable, fine-grained benthic communities and the
higher cost of monitoring sites in deeper waters and further offshore.
Historic disposal has occurred at or in the vicinity of these Sites
receiving final designation. The substrate of the Sites is similar in
grain size to the disposal material and the placement avoids the unique
habitat features of Yaquina Reef.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast (40 CFR 228.6(a)(1)).
The EPA does not anticipate that the geographical position of the
Sites, including the depth, bottom topography and distance from the
coastline, will unreasonably degrade the marine environment. To help
avoid adverse mounding at the Sites, site management will generally
include uniform placement, i.e., spreading disposal material throughout
the Sites in a manner that will result in a relatively uniform
accumulation of disposed material on the bottom over the long-term.
Site management will include creating dump plans for each Site where
disposal will occur. Dump plans establish cells within the Site to
ensure uniform placement. In addition to minimizing mounding, the
uniform placement is expected to minimize the thickness of disposal
accumulations, which is expected to be less disruptive to benthic
communities and aquatic species, such as crabs, that might be present
at the Sites during disposal events. Because the Sites are relatively
deep, to avoid the nearshore Yaquina Reef, they are not considered
dispersive. Material placed in the Sites is not expected to move from
the Sites except during large storm events.
(2) Location in Relation to Breeding, Spawning, Nursery, Feeding,
or Passage Areas of Living Resources in Adult or Juvenile Phases (40
CFR 228.6(a)(2)).
The Sites are not located in exclusive breeding, spawning, nursery,
feeding or passage areas for adult or juvenile phases of living
resources. At and in the immediate vicinity of the Sites, a variety of
pelagic and demersal fish species,
[[Page 55149]]
including salmon, green sturgeon, and flatfish, as well as Dungeness
crab, are found. Studies conducted by the EPA and the Corps at the
Sites found the benthic infaunal and epifaunal community to be
dominated by organisms that are adapted to a sandy environment. The
benthic species, densities and diversities collected during these
studies were typical of the nearshore sandy environment along the
Oregon coast.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3)).
The Sites are approximately 2 nautical miles off the beach in water
depths greater than 100 feet and beyond the ecologically and
economically important Yaquina Reef. Given the depth of these Sites,
the material is not expected to disperse from the Sites except during
infrequent large storm events. Thus, impacts to beaches or the reef
will be avoided. The sand removed from the Newport littoral cell is not
expected to affect Newport's beaches because Pacific Northwest beaches
tend to respond strongly to storm effects, the episodic nature of which
would mask any long-term discrete changes such as disposal at these
Sites. Site monitoring and adaptive management are components of the
final SMMP to ensure beaches and other amenity areas are not adversely
impacted.
(4) Types and Quantities of Wastes Proposed To Be Disposed of, and
Proposed Methods of Release, Including Methods of Packing the Waste, if
any (40 CFR 228.6(a)(4)).
Dredged material found suitable for ocean disposal pursuant to the
regulatory criteria for dredged material, or characterized by chemical
and biological testing and found suitable for disposal into ocean
waters, will be the only material allowed to be disposed at the Sites.
No material defined as ``waste'' under the MPRSA will be allowed to be
disposed at the Sites. The dredged material to be disposed at the Sites
will be predominantly marine sand. Generally, disposal is expected to
occur from a hopper dredge, in which case, material will be released
just below the surface while the disposal vessel remains under power
and slowly transits the disposal location. This method of release is
expected to spread material at the Sites to minimize mounding, while
minimizing impacts to the benthic community and to aquatic species
present at the Sites at the time of a disposal event.
(5) Feasibility of Surveillance and Monitoring (40 CFR
228.6(a)(5)).
The EPA expects monitoring and surveillance at the Sites to be
feasible and readily performed from small, surface vessels. The EPA
will ensure monitoring of the sites for physical, biological and
chemical attributes. Bathymetric surveys will be conducted annually,
contaminant levels in the dredged material will be analyzed prior to
dumping, and the benthic infauna and epibenthic organisms will be
monitored every 5 years, as funding allows.
(6) Dispersal, Horizontal Transport and Vertical Mixing
Characteristics of the Area, Including Prevailing Current Direction and
Velocity, if any (40 CFR 228.6(a)(6)).
Disposal at the Sites will not degrade the existing wave
environment within or outside the Sites. The placement of dredged
material may have a minor effect on circulation within or outside the
site boundaries. Due to the anticipated size of the mound resulting
from the accumulated dredged material (10-14 feet high covering 597
acres over 20 years), it is possible the currents in the vicinity of
the Sites may begin to be affected. Any potential effect would not be
expected to occur until a substantial amount of dredged material has
been placed at the site (4-6 million cubic yards). At that time, the
EPA plans to re-assess these assumptions and associated potential
effects.
(7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (Including Cumulative Effects) (40 CFR
228.6(a)(7)).
The North Site was used for disposal of dredged material from 2001
to 2011. The seafloor elevation at the Site has risen 12 feet in a few
locations. Annual bathymetric surveys will continue to be conducted to
monitor mounding at the North Site. To date, disposal of dredged
material has not changed the benthic infaunal nor epifaunal species
expected to inhabit nearshore sandy substrates at this location. The
South Site, prior to this designation, was selected by the Corps under
their Section 103 authority under the MPRSA and has been used during
the current 2012 dredging season. Preferential use of the North Site is
expected to resume when this designation becomes effective, but
capacity and other factors may result in continued use of the South
Site in the future. The final SMMP includes monitoring and adaptive
management measures to address potential mounding issues.
(8) Interference With Shipping, Fishing, Recreation, Mineral
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR
228.6(a)(8)).
The Sites are not expected to interfere with shipping, fishing,
recreation or other legitimate uses of the ocean. Commercial and
recreational fishing and commercial navigation are the primary
activities that may spatially overlap with disposal at the Sites. This
overlap is more likely at the South Site given the South Site's
proximity to the commercial shipping lane and in more direct alignment
with the entrance channel to Yaquina Bay. The likelihood of direct
interference with these activities is low, provided there is close
communication and coordination among users, vessel traffic control and
the U.S. Coast Guard. The EPA is not aware of any plans for mineral
extraction, desalination plants, or fish and shellfish culture
operations near the Sites at this time. The Sites are not located in
areas of special scientific importance. They are located to the south
of the Newport Hydrographic line, south of the proposed Northwest
National Marine Renewable Energy Center's nearshore test facility, and
west of the Yaquina Reef.
(9) The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or Trend Assessment of Baseline Surveys
(40 CFR 228.6(a)(9)).
The EPA has not identified any potential adverse water quality
impacts from the ocean disposal of dredged material at the Sites based
on water and sediment quality analyses conducted in the study area of
the Sites, and based on past disposal experience at the proposed North
Site when it was used as a Section 103 selected site. Benthic grabs and
trawl data show the ecology of the area to be that associated with
sandy nearshore substrate typical of the Oregon Coast.
(10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a)(10)).
Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the Sites. Material expected to be disposed at the Sites
will be uncontaminated marine sands similar to the sediment present at
the Sites. Some fine-grained material, finer than natural background,
may also be disposed. While this finer-grained material could have the
potential to attract nuisance species to the Sites, no such recruitment
is known to have taken place at the North Site while the Site was used
as a Section 103 selected site. The final SMMP includes benthic
infaunal and epifaunal monitoring requirements, which will act to
identify any nuisance species and allow the EPA to direct special
studies
[[Page 55150]]
and/or operational changes to address the issue if it arises.
(11) Existence at or in Close Proximity to the Site of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11)).
No significant cultural features have been identified at, or in the
vicinity of, the proposed Sites at this time. The EPA coordinated with
Oregon's State Historic Preservation Officer and with Tribes in the
vicinity of the Sites to identify any cultural features. On July 16,
2012, the State agreed with the EPA that the designation of the North
and South Yaquina Sites will have no effect on any known cultural
resources. No cultural features or shipwrecks have been observed or
documented within the proposed Sites or their immediate vicinity.
3. Environmental Statutory Review--National Environmental Policy Act
(NEPA); Magnuson-Stevens Act (MSA); Marine Mammal Protection Act
(MMPA); Coastal Zone Management Act (CZMA); Endangered Species Act
(ESA); National Historic Preservation Act (NHPA)
a. NEPA
Section 102 of the National Environmental Policy Act of 1969, as
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to
prepare an Environmental Impact Statement (EIS) for major federal
actions significantly affecting the quality of the human environment.
NEPA does not apply to the EPA designations of ocean disposal sites
under the MPRSA because the courts have exempted the EPA's actions
under the MPRSA from the procedural requirements of NEPA through the
functional equivalence doctrine. The EPA has, by policy, determined
that the preparation of NEPA documents for certain EPA regulatory
actions, including actions under the MPRSA, is appropriate. The EPA's
``Notice of Policy and Procedures for Voluntary Preparation of NEPA
Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998),
sets out both the policy and procedures the EPA uses when preparing
such environmental review documents. The EPA's primary voluntary NEPA
document for designating the Sites was the draft Yaquina Bay, Oregon
Ocean Dredged Material Disposal Sites Evaluation Study and
Environmental Assessment, (July 2012) (EA), jointly prepared by the EPA
and the Corps. The draft EA and its Technical Appendices, which are
part of the docket for this action, were finalized after the close of
the public comment period for this action. The information from the
final EA is used above, in the discussion of the ocean dumping
criteria.
b. MSA and MMPA
The EPA prepared an essential fish habitat (EFH) assessment
pursuant to Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-
Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted
that assessment to the National Marine Fisheries Service (NMFS) on
December 19, 2011. The NMFS reviewed the EPA's EFH assessment and
Endangered Species Act (ESA) Biological Assessment and addendum thereto
for purposes of the Marine Mammal Protection Act of 1972, as amended
(MMPA), 16 U.S.C. 1361 to 1389. The NMFS found that that all potential
adverse effects to ESA-listed marine mammals, marine turtles, and
designated critical habitat for leatherback sea turtles from the EPA's
action to designate the Yaquina North and South Sites are discountable
or insignificant. Those findings are documented in the Biological
Opinion issued by the NMFS to the EPA on July 10, 2012. With respect to
EFH, the NMFS concluded that the disposal of dredged material will
adversely affect water quality from increased turbidity in the water
column, availability of benthic prey species, and safe passage during
disposal. The NMFS provided two EFH Conservation Recommendations to
avoid or minimize the effects to EFH mentioned above. The NMFS
recommends monitoring how fish interact with the disposal plume and
conducting surveys to determine seasonal distribution, abundance, and
habitat use of EFH species and their prey at the disposal sites. The
EPA will respond in a separate written response to the NMFS'
recommendations.
c. CZMA
The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451
to 1465, requires Federal agencies to determine whether their actions
will be consistent to the extent practicable with the enforceable
policies of approved state programs. The EPA prepared a consistency
determination for the Oregon Coastal Management Program (OCMP), the
approved state program in Oregon, to meet the requirements of the CZMA
and submitted that determination to the Oregon Department of Land
Conservation and Development (DLCD) for review on February 17, 2012.
The DCLD concurred on May 7, 2012, with the EPA's determination that
the designation of the North and South Yaquina ODMD sites is consistent
to the maximum extent practicable with the enforceable policies of the
OCMP. The DLCD based its concurrence on the information contained in
the EPA's consistency determination and supporting materials, and on
extensive conversations with the EPA. The Oregon Department of Fish and
Wildlife (ODFW) participated in discussions with the EPA and the DLCD
concerning the consistency determination and both the ODFW and the DLCD
encouraged the EPA to pursue future disposal sites within the littoral
zone.
d. ESA
The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to
1544, requires Federal agencies to consult with the NMFS and the U.S.
Fish and Wildlife Service (USFWS) to ensure that any action authorized,
funded, or carried out by the Federal agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of any critical habitat. The EPA prepared a Biological Assessment (BA)
to assess the potential effects of designating the two proposed Sites
on aquatic and wildlife species and submitted that BA to the NMFS and
the USFWS on December 19, 2011. The EPA found that site designation
does not have a direct impact on any of the identified ESA species, and
also found that indirect impacts associated with reasonably foreseeable
future disposal activities had to be considered. These anticipated
indirect impacts from disposal included a short-term increase in
suspended sediment, short-term disruption in avian foraging behavior,
modification of bottom topography, loss of benthic prey species from
burial, and loss of pelagic individuals during disposal of material
through the water column. The EPA concluded that its action may affect,
but is not likely to adversely affect 18 ESA-listed species and is not
likely to adversely affect designated critical habitat for southern
green sturgeon (Acipenser medirostris) but is likely to adversely
affect Oregon Coast coho salmon (Oncorhynchus kisutch). The USFWS
concurred on the EPA's finding that the proposed action is not likely
to adversely affect listed endangered or threatened species under the
jurisdiction of the USFWS.
The NMFS issued a Biological Opinion on July 10, 2012. The NMFS
considered disposal by the Corps and all other entities as an
interrelated action to the EPA's proposed site designation, thus, the
effects from future disposals are indirect effects of the EPA's action.
The NMFS concluded that the EPA's action is not likely to jeopardize
the
[[Page 55151]]
continued existence of Oregon Coast coho salmon, southern distinct
population segment (DPS) of North American green sturgeon, southern DPS
of Pacific eulachon, or result in the destruction or adverse
modification of designated critical habitat for southern DPS North
American green sturgeon. The NMFS also concluded that the EPA's
proposed action is not likely to adversely affect 18 ESA-listed salmon,
sea lions, whales, marine turtles, and critical habitat for southern
DPS of North American green sturgeon and leatherback turtles.
The NMFS did not issue an incidental take statement with their
Biological Opinion to the EPA. This decision was based upon the
following: (1) The adverse effects identified in the Biological Opinion
will result from indirect effects of subsequent Federal actions carried
out by the Corps and other entities carrying out dredging and disposal;
(2) these individual actions are likely to cause take of ESA-listed
species, so it is more appropriate to consider exempting take on a
case-by-case basis as such actions are proposed in the future; (3) the
EPA's action as described in the Biological Opinion does not authorize
and will not itself result in disposal of any dredged materials; and
(4) the NMFS does not anticipate any take will result from the site
designation and adoption of the SMMP. The NMFS further stated that
``any further analysis of the effects of disposal of dredged material
at the disposal site and issuance of an incidental take statement with
reasonable and prudent measures and non-discretionary terms and
conditions to minimize take will be prepared when an ESA consultation
on a dredging and disposal action is requested.''
e. NHPA
The EPA initiated consultation with the State of Oregon's Historic
Preservation Officer (SHPO) on February 27, 2012, to address the
National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to
470a-2, which requires Federal agencies to take into account the effect
of their actions on districts, sites, buildings, structures, or
objects, included in, or eligible for inclusion in the National
Register. The EPA determined that no historic properties were affected,
or would be affected, by designation of the Sites. The EPA did not find
any historic properties within the geographic area of the Sites. This
determination was based on a review of the National Register of
Historic Districts in Oregon, the Oregon National Register list and an
assessment of potential cultural resources near the Sites. On July 16,
2012, the State agreed with the EPA that the designation of the North
and South Yaquina Sites will have no effect on any known cultural
resources.
4. Statutory and Executive Order Reviews
This rule finalizes the designation of two ocean dredged material
disposal sites pursuant to Section 102 of the MPRSA. This action
complies with applicable executive orders and statutory provisions as
follows:
a. Executive Orders 12866 and 13563.
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993). This
action is exempt from review under Executive Order 12866 and Executive
Order 13563 (76 FR 3821, January 21, 2011).
b. Paperwork Reduction Act
The EPA does not reasonably anticipate collection of information
from ten or more people based on the historic use of designated sites.
Consequently, the action is not subject to the Paperwork Reduction Act.
c. Regulatory Flexibility
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et
seq., generally requires Federal agencies to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
this rule on small entities, small entity is defined as: (1) A small
business defined by the Small Business Administration's size
regulations at 13 CFR part 121; (2) a small governmental jurisdiction
that is a government of a city, county, town, school district, or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. The
EPA has determined that this action will not have a significant
economic impact on small entities because the rule will only have the
effect of regulating the location of sites to be used for the disposal
of dredged material in ocean waters. After considering the economic
impacts of this proposed rule, I certify that this action will not have
a significant economic impact on a substantial number of small
entities.
d. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C.
1531 to 1538, for State, local, or tribal governments or the private
sector. This action imposes no new enforceable duty on any State, local
or tribal governments or the private sector. Therefore, this action is
not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of
the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small government entities. Those
entities are already subject to existing permitting requirements for
the disposal of dredged material in ocean waters.
e. Executive Order 13132: Federalism
This action does not have federalism implications. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this action. In the spirit of Executive Order 13132, and consistent
with the EPA policy to promote communications between the EPA and State
and local governments, the EPA specifically solicited comment from
State and local officials but did not receive comments from State or
local officials.
f. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 because the designation of the two ocean dredged
material disposal Sites will not have a direct effect on Indian Tribes,
on the relationship between the federal government and Indian Tribes,
or on the distribution of power and responsibilities between the
federal government and Indian Tribes. Thus, Executive Order 13175 does
not apply to this action. Although Executive Order 13175 does not apply
to this action the EPA consulted with tribal officials in the
development of this action, particularly as the action relates to
potential impacts to historic or cultural resources. The EPA
specifically solicited comment from tribal officials.
[[Page 55152]]
The EPA did not receive comments from tribal officials.
g. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under Section 5-501 of the Executive
Order has the potential to influence the regulation. This action is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks. The
action concerns the designation of two ocean dredged material disposal
sites and only has the effect of providing designated locations to use
for ocean disposal of dredged material pursuant to Section 102(c) of
the MPRSA.
h. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355) because it is not a ``significant
regulatory action'' as defined under Executive Order 12866.
i. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272),
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This action
includes environmental monitoring and measurement as described in the
EPA's SMMP. The EPA will not require the use of specific, prescribed
analytic methods for monitoring and managing the designated Sites. The
Agency plans to allow the use of any method, whether it constitutes a
voluntary consensus standard or not, that meets the monitoring and
measurement criteria discussed in the proposed SMMP.
j. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629) establishes federal executive
policy on environmental justice. Its main provision directs federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The EPA determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The EPA has assessed the overall protectiveness of
designating the disposal Sites against the criteria established
pursuant to the MPRSA to ensure that any adverse impact to the
environment will be mitigated to the greatest extent practicable.
k. Congressional Review Act
Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The EPA will submit a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). This rule will be effective October 9, 2012.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research and Sanctuaries Act, as
amended, 33 U.S.C. 1401, 1411, 1412.
Dated: August 27, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
For the reasons set out in the preamble, the EPA amends chapter I,
title 40 of the Code of Federal Register as follows:
PART 228--[AMENDED]
0
1. The authority citation for Part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by adding paragraph (n)(15) to read as
follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(n) * * *
(15) Yaquina Bay, OR--North and South Ocean Dredged Material
Disposal Sites
(i) North Site.
(A) Location (NAD 83): 44[deg]38'17.98'' N, 124[deg]07'25.95'' W;
44[deg]38'12.86'' N, 124[deg]06'31.10'' W; 44[deg]37'14.33'' N,
124[deg]07'37.57'' W; 44[deg]37'09.22'' N, 124[deg]06'42.73'' W.
(B) Size: Approximately 1.07 nautical miles long and 0.66 nautical
miles wide (0.71 square nautical miles); 597 acres (242 hectares)
(C) Depth: Ranges from approximately 112 to 152 feet (34 to 46
meters)
(D) Primary Use: Dredged material
(E) Period of Use: Continuing use
(F) Restrictions: (1) Disposal shall be limited to dredged material
determined to be suitable for ocean disposal according to 40 CFR 227.13
from the Yaquina Bay and River navigation channel and adjacent areas;
(2) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the SMMP, is required.
(ii) South Site.
(A) Location (NAD 83): 44[deg]36'04.50'' N, 124[deg]07'52.66'' W;
44[deg]35'59.39'' N, 124[deg]06'57.84'' W; 44[deg]35'00.85'' N,
124[deg]08'04.27'' W; 44[deg]34'55.75'' N, 124[deg]07'09.47'' W.
(B) Size: Approximately 1.07 nautical miles long and 0.66 nautical
miles wide (0.71 square nautical miles); 597 acres (242 hectares)
(C) Depth: Ranges from approximately 112 to 152 feet (34 to 46
meters)
(D) Primary Use: Dredged material
(E) Period of Use: Continuing use
(F) Restrictions: (1) Disposal shall be limited to dredged material
determined to be suitable for ocean disposal
[[Page 55153]]
according to 40 CFR 227.13, from the Yaquina Bay and River navigation
channel and adjacent areas;
(2) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. 2012-22100 Filed 9-6-12; 8:45 am]
BILLING CODE 6560-50-P